Fair use (cont.)
Courts evaluate the first factor as two distinguishable elements. 1 The first element is “whether and to what extent [the new work] is transformative;” 2 and the second element is whether the new work is a commercial or nonprofit educational use. 3 As the court in Campbell noted, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” 4 Accordingly, a work is considered transformative when it “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message.” 5
In Perfect 10, the court noted that “‘parody has an obvious claim to transformative value’ because ‘it can provide social benefit, by shedding light on an earlier work, and in the process creating a new one’ . . . [even though] a parody typically has the same entertainment purpose as the original work.” 6 In the case of mashups, although they are occasionally made for commercial use, much like parodies, and have the same purpose as the original work, also like parodies, mashups creatively shed light on the past works and provide a social benefit as seen by their immense popularity.
The second factor listed in the section, “the nature of the copyrighted work,” 7 mainly distinguishes between creative or factual works. 8 Musical works are inherently creative, and are thus afforded more protection than factual works. 9 Meanwhile, the third factor evaluates the amount and substantiality of the portion used. 10 In Harper, the court ruled against a finding of fair use where an infringer used the “most powerful passages in [the book’s] chapters.” 11 It would be difficult for a mashup artist to argue that he did not choose “powerful” portions of a particular song, as these artists often select their pieces based on popularity and potential. Mashup artists use only small portions of each song, however; and as such, this factor may tip the scale either way.
The fourth and final factor, which is also—according to the Harper court—the most important factor, 12 is the new work’s effect on “the potential market for or value of copyrighted work.” 13 Courts will not allow the new work to “usurp demand [for the prior work] by its substitutive effect.” 14 As one scholar astutely observed, it is improbable that mashups will provide a substitute for the original work, as they are “likely [to appeal] to a different audience all together.” 15
Further, it is doubtful that a mashup including an author’s original work will usurp the original author’s market. A consumer who is going to purchase a particular artist’s work will not abstain from purchasing that work merely because they can illegally download or purchase a mashup containing a thirty-second clip of that artist’s work. To the contrary, mashups are expanding artists’ markets by exposing new audiences to music they would not listen to otherwise. However, although mashups may not threaten record sales, they often withhold licensing revenues that copyright owners would otherwise receive. 16
In sum, while mashups are questionably transformative, are based on published works, use only small portions of those works, and do not directly usurp the demand for the prior works, there has yet to be a definitive answer—legislative or judicial—addressing their legality. In the author’s opinion, the above analysis appears to describe a favorable case for a finding of fair use, even if the de minimis exception provides no protection.
In the next, and final, installment of the series, Frank will summarize the issues as well as offer some concluding thoughts.
1. Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1171 (2004).
2. Id. at 1166.
3. Id. at 1171.
6. Perfect 10, Inc. v. Amazon.com Inc., 508 F.3d 1146, 1165 (9th Cir 2007).
7. § 107(2)
8. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563 (1985).
9. See Sony v. Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 496-97 (1984).
10. § 107(3).
11. Harper, 471 U.S. 539, 565.
12. Harper, 471 U.S. 539, 602.
13. § 107(4).
14. Campbell, 114 S. Ct. 1164, 1181.
15. 88 N.C.L. REV. 639, 81.
16. See 88 N.C.L. Rev. 639, 682.